199 F.

2d 720

MONTGOMERY WARD & CO., Inc.

v.
FREEMAN.
No. 6488.

United States Court of Appeals Fourth Circuit.

Argued Oct. 14, 1952.
Decided Nov. 5, 1952.

Daniel W. Wilkinson, Jr., and Charles E. Ford, Newport News, Va.

(Murray, Ford, West & Wilkinson, Newport News, Va., on brief), for
appellant.
Percy Carmel, Hampton, Va., and Wesley R. Cofer, Jr., Phoebus, Va.
(Kearney & Cofer, Phoebus, Va., and Carmel & Carmel, Hampton, Va.,
on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.

This action, as originally brought, claimed damages from Montgomery Ward &
Company, Inc. for false imprisonment and for malicious prosecution, which
were alleged to have resulted from a charge that the plaintiff, Cora Lee
Freeman, had stolen a number of zippers from a counter of the defendant's store
in Newport News, Virginia. The complaint adequately charged both offenses;
but in the midst of the trial in the District Court the plaintiff's attorney were
required to elect between the two causes of action, and they chose false
imprisonment because of the difficulty of proving that the defendant lacked
probable cause for the prosecution. The trial resulted in a verdict of $12,000 for
the plaintiff; and the defendant appealed on the broad ground that the plaintiff
had not made out a case of false imprisonment, and upon the additional grounds
(1) that the judge failed to instruct the jury that the defendant was entitled to
detain the plaintiff for a reasonable time without a warrant pending an
investigation if it had reasonable cause to believe that the plaintiff had taken
goods from the store without paying for them; and (2) that evidence, which was

relevant only to the charge of malicious prosecution, was presented to the jury
so that it was led to award excessive damage for false imprisonment.
2

The evidence of the plaintiff disclosed the following situation: She was an
elderly woman 63 years of age and was engaged from time to time in the
business of paper hanging. She had dealt with the defendant store on prior
occasions and about two weeks before her arrest on January 23, 1947 had
purchased six zippers six inches in length, together with some other articles to
be used in a garment she was making. On that date she again visited the store
accompanied by her daughter and a small grandchild. Her purpose was to return
the zippers because they were too long and to get five inch zippers in exchange,
but she left her home hurriedly and could not say how many six inch zippers
she brought back to the store. When she reached the store her daughter and
grandchild left her to go to the rest room and she went to the proper counter in
the store to make the exchange. She was told by the saleswoman that the
exchange could not be made because she had not brought back the sales ticket
of the original purchase and also because the store did not have any shorter
zippers. However, she picked up a six inch zipper, supposing it was a five inch
one, and gave it to the saleswoman with a one dollar bill telling her that it was a
six inch zipper. The size of the article was plainly printed on the cellophane
wrapper but the plaintiff had left her glasses at home and could not see. The
saleswoman accepted the money and the zipper without comment and went to
the cash register. The plaintiff also bought some sewing cotton. When she had
completed the purchases and was waiting for her change she was rejoined by
her companions and after examining other articles on sale, they left the store
and stood near the entrance looking at the goods in the show windows.

Then began the actions on which the charge of false imprisonment was based.
As the women stood near the main entrance they were approached by a
department manager of the store who pushed the plaintiff's face against the
glass and asked her if she had some zippers in her handbag. According to the
testimony of the daughter an arm came over as they stood looking in the
window so that her mother could not move. The plaintiff replied that she had
zippers in her handbag and the manager then took her by the arm and told her to
return to the store. She did so willingly accompanied by her daughter, and he
did not retain his hold upon her arm.

They were taken to a small room on the second floor of the store where they
met the merchandise manager of the establishment. The plaintiff was pushed
into a chair and questioned about the zippers, and it was made clear to her that
she could not leave the room. The saleswoman, who had waited on the
plaintiff, was brought in and related that she had seen the plaintiff pick up the

zippers and put them in her handbag.

5

These proceedings consumed from five to ten minutes. In the meantime, the
store had telephoned the police and in response two detectives came to
investigate. When they learned the situation they told the management that they
could not arrest the plaintiff without a warrant as they did not see the plaintiff
commit the alleged offense. They, however, requested the plaintiff to go to the
police station for further questioning and she went willingly with her daughter
and the two detectives in an unmarked police car after she was told that she was
not under arrest. At the station house she was treated courteously and gave the
same account of her attempt to exchange the zippers. While there a warrant for
larceny was sworn out by the agent of the defendant and served upon the
plaintiff and she was finger-printed and released on her own recognizance and
then driven to her home by the officers.

Some months later the case was tried in the Police Court and the plaintiff was
acquitted. Since her arrest she has suffered from shame and humiliation, her
nerves have been bad, she has lost weight and been unable to sleep or to resume
her customary occupation. However, she did not consult a physician.

We think that this evidence of what occurred before the plaintiff went to the
station house voluntarily with the detectives was sufficient to take the case of
false imprisonment to the jury under the law of Virginia, as set out in
Montgomery Ward & Co. v. Wickline, 188 Va. 485, 489, 50 S.E.2d 387, 388.

"False imprisonment is restraint of one's liberty without any sufficient legal

excuse therefor by word or acts which he fears to disregard, and neither malice,
ill will, nor the slightest wrongful intentions is necessary to constitute the
offense.' See also, Kress & Co. v. Musgrove, 153 Va. 348, 356, 149 S.E. 453.

"The gist of the action is the illegal detention of the person, without lawful
process, or the unlawful execution of lawful process.' Kress & Co. v. Roberts,
143 Va. 71, 75, 129 S.E. 244, 246.

10

'It is firmly settled that a peach officer may legally arrest, without a warrant,
for a misdemeanor committed in his presence, but that a warrant is necessary
where the offense is not committed in his presence. Crosswhite v. Barnes, 139
Va. 471, 478, 124 S.E. 242, 40 A.L.R. 54; Williams v. Commonwealth, 142
Va. 667, 671, 128 S.E. 572.'

11

See also, W. T. Grant Co. v. Owens, 149 Va. 906, 921, 141 S.E. 860, 865,

where it is said: "any restraint put by fear or force upon the actions of another is
unlawful, and constitutes false imprisonment unless a showing of justification
makes it a true or legal imprisonment."
12

The plaintiff's account of her actions presented a state of facts from which it
might have been inferred not only that she had committed no offense, but that
she had done nothing to arouse the suspicions of a reasonable person, but
nevertheless had been subjected to physical restraint in an improper manner;
and hence there was no legal excuse for her detention against her will and
without warrant in the office of the merchandise manager of the store.

13

There is substance, however, to the contention that the jury was not correctly
instructed as to the right of the defendant to detain the plaintiff for questioning
if the defendant had reasonable ground to believe that its property had been
unlawfully taken. The saleswoman who waited upon the plaintiff was a
department manager of the store and had been in its employ for nine years. She
testified that Mrs. Freeman presented a couple of zippers and asked to exchange
them, and was told that the store had nothing shorter, and that she then picked
up one from the pile and said she would take it anyway and gave a dollar in
payment. Thinking that it was strange that the customer had chosen something
that she did not want, the saleswoman took the money to the cash register at a
little distance from the plaintiff and looking back saw the plaintiff reaching into
the bin and sticking some more zippers down in her bag. The saleswoman then
placed the purchased zipper in a small bag together with some smaller articles
and, acting under the rule of the establishment, telephoned to a manager of the
store as to what she had seen. Other witnesses for the defendants gave evidence
that the plaintiff returned to the store at the request of the department manager
and that she was not physically mistreated or improperly handled in anyway,
either when she was brought back into the store or in the office of the
merchandise manager when she was questioned, and that after the arrival of the
detectives she went with them voluntarily to the station house.

14

This testimony on behalf of the defendant presented a situation which justified

the application of the rule of law in effect in Virginia and elsewhere that if any
owner, acting in the exercise of his right to protect his property, has reasonable
grounds to believe that another is stealing it, he is justified in detaining the
suspect for a reasonable length of time for the purpose of investigation in a
reasonable manner. See W. T. Grant & Co. v. Owens, 149 Va. 906, 922, 141
S.E. 860; Restatement of Torts, Secs. 77 to 88; Jacques v. Childs Dining Hall
Co., 244 Mass. 438, 138 N.E. 843, 26 A.L.R. 1329; Collyer v. S. K. Kress &
Co., 5 Cal.2d 175, 54 P.2d 20; Bettola v. Safeway Stores, Inc., 11 Cal.App.2d
430, 54 P.2d 24; Teel v. May Department Stores Co., 348 Mo. 696, 155 S.W.2d

74, 137 A.L.R. 495.

15

The defendant requested the court to charge the jury to this effect, but the
request was refused. The jury was told that if the manager, as the result of the
saleswoman's report, had reasonable cause to believe that the plaintiff took the
zippers from the store without paying for them, he had a right to request the
plaintiff to return to the store for a reasonable time and to question her in
investigating the circumstances, and to report the same to the police authorities;
and if the jury found these facts, and if the plaintiff was not detained in the
store against her will, there was no false imprisonment. In addition the jury was
told that the principal issue was whether the plaintiff was detained against her
will by employees of the defendant, and if they should so find, their verdict
should be for the plaintiff. These instructions were too narrow. They took away
from the jury the question of the reasonableness of the detention and required
the jury to find for the plaintiff even though the jury should find that the
detention was made only for a reasonable time and in a reasonable manner. On
this account a new trial must be granted; and on this trial the instruction should
submit the reasonableness of the detention to the jury and should set out the
facts which, if found, would constitute reasonable grounds for the defendant's
conduct. There is no material distinction in principle between the issue of
reasonable grounds for detention in false imprisonment and the issue of
probable cause in malicious prosecution, and the procedure for the submission
of the issue to the jury should be the same in both cases. See, Virginia Ry. &
Power Co. v. Klaff, 123 Va. 260, 96 S.E. 244; Clinchfield Coal Corp. v. Redd,
123 Va. 420, 96 S.E. 836; Munger v. Cox, 146 Va. 574, 131 S.E. 841, 132 S.E.
687; Brodie v. Huck, 187 Va. 485, 47 S.E.2d 310. These authorities establish
the rule in cases of malicious prosecution that if the facts leading to the
prosecution are undisputed and lead to only one inference, the question of
probable cause is to be decided by the court; but if the facts are in dispute or are
susceptible of several inferences which lead to different conclusions, it is the
duty of the judge to submit their credibility to the jury with instructions that the
facts found do or do not amount to probable cause.

16

We think, however, that the plaintiff should not be required to elect between the
two causes of action set out in the complaint but should be permitted to
prosecute both, if desired, to final judgment. Rule 8(e)(2) of the Federal Rules
of Civil Procedure, 28 U.S.C.A. provide that a party may state as many separate
claims as he has, regardless of consistency, and whether based on legal or
equitable grounds, or both; and Rule 81(c) provides that the rules shall apply to
civil actions removed to the District Courts of the United States from the state
courts and govern all procedure after removal. See Nachman Spring-Filled
Corp. v. Kay Mfg. Co., 2 Cir., 139 F.2d 781; Reconstruction Finance

Corporation v. Goldberg, 7 Cir., 143 F.2d 752; German v. Carnegie-Illinois

Steel Corp., 3 Cir., 156 F.2d 977. Claims for false imprisonment and malicious
prosecution are not infrequently joined in the same action, and questions
relating to the damages recoverable under both claims may be covered by the
court's instructions. In the present case the election to restrict the action to false
imprisonment after evidence of the actions of the police officers at the police
station and evidence of the plaintiff's acquittal, which was germane only to the
claim for malicious prosecution, had been received, resulted in a verdict that
was grossly excessive when considered as compensation for the brief detention
of the plaintiff in the defendant's store before the police took over. There was
no evidence of false imprisonment on the part of the defendant in the actions of
the parties after the plaintiff, being informed that she was not under arrest,
willingly accompanied the police officers to the station house; or in the
courteous treatment which she received at their hands after the formal warrant
of arrest was taken out. Montgomery Ward & Co. v. Wickline, 188 Va. 485,
491, 50 S.E.2d 387; Mullins v. Sanders, 189 Va. 624, 54 S.Ed.2d 116. The
judge told the jury that the guilt or innocence of the plaintiff, as well as the
actions of the police officers, were not issues in the case and should be
disregarded by it in making up its verdict; but it is obvious that the jury paid
little attention to this instruction.
17

The judgment of the District Court will be reversed and the case remanded for a
new trial.

18

Reversed and remanded.